There is a thin line between moral obligation of respecting a female co-worker and the legal obligation to do so. The IC cannot superimpose its moralities on the workforce but must be guided by legal principles and determine outcome of the misconduct empirically.

Sexual harassment is not about sexual misconduct as much as it is about abuse of power. Two consenting adults can engage in any relationship but translate that into a work environment and it becomes impossible to deal with the repercussions and sensitivities for those involved and those not involved. Workplace sexual harassment is a form of gender discrimination which violates a woman's fundamental right to equality and right to life, guaranteed under the Constitution of India and is criminalised outside of work context through several provisions of the Indian Penal Code.

Workplace sexual harassment not only creates an insecure and hostile working environment for women but also impedes their ability to perform and be part of the labour force in equal measure in a competitive work environment of today. The POSH Act was enacted as a comprehensive legislation to provide a safe, secure and enabling environment, free from sexual harassment to every worker.

Pursuant thereto, in India, a certain level of sensitivity has crept in over the last decade or so as regards the ill effects of sexual harassment for corporate India or India Inc. Corporates cognizant of protection of women especially are taking steps to ensure people are aware there is a high bar of tolerance and this principle percolates to each and every employee.

The objective of this article is to glance back at the inception of these laws and analyses the reality while keeping an eye on the future.

8 years of POSH Law – Objective, meeting expectation and outcomes

Since the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013 ("POSH" or "POSH Law" or "POSH Act"), many corporates have moved forward and appointed committees, sensitized their employees and ensured processes as mandated are put in place.

However, despite the noise and availability of public support to enforce the POSH laws including the adoption of POSH policies by the corporate, there are no reliable statistics for analyzing the extent to which employers comply with POSH and the number of complaints raised and redressed. One of the biggest deterrents in the POSH law is with respect to cancellation of license. There are but a few cases that are in public domain where such action was in fact taken.

The lack of information in this space makes one wonder whether POSH Act is a toothless tiger.

As practicing professionals in this space, we have been advising clients with even 1 employee to adopt and imbibe the principles of prohibition of sexual harassment.

Assuming (in the absence of data) that India Inc is diligent and large and small corporates have successfully adopted the policies and implemented the same, the government machinery to support corporate action is not in place. There is no support or easily available information even to perform routine compliances like filing of annual reports. Is anyone reviewing these annual reports? Is there a consolidated document published upon such review – nothing is clear.

Over the last 8 years not enough jurisprudence has been created to which could offer to clarify various aspects of the law, including what constitutes sexual harassment, obligations of an employer/IC, remedies/safeguards available to the victim, process of dealing with a complaint, what is permitted under investigation etc. Most women continue to be hesitant in bringing actions due to apprehension of being disbelieved or ridiculed; or having a record of being a victim. The stigma still attaches to the victim.

Corporates are complying earnestly but the law is lacking in bringing compliance in the true spirit of compliance. It's hard to say whether women are in fact safer in their workplace after 8 years of enactment of this law.

Gaps and ambiguities – Measures for effectiveness

POSH law was brought in 16 years after the Vishakha guidelines were issued therefore from the very onset the spirit of this law was not as diligent as it ideally should have been. The same reflects in the character of the law too. There are certain ambiguities in the law that if corrected should move a step closer towards ensuring a robust implementation of the same and will hopefully make workplaces safer for women and others.

Protection to outsiders

The POSH Act generously extends protection to women outside of the workplace as well – like a vendor, customer or any visitor to the premise. However, how such a woman will have access to the IC of the concerned company and whether an IC can possess jurisdiction, call as witness such outsider is unclear. There are no case studies that indicate what can be done in cases like this.

Protection from outsiders

The POSH Act also brings within its ambit any harassment that occurs in the workplace. This could mean an employee or a female employee alleges harassment against a client or any person who is from outside of the organisation. For e.g.: harassment from a client of the company during a meeting. Again, the powers of the IC and what it can recommend are not clear.

Click here to continue reading . . .

Originally published by Business HR magazine.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.